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Kemal v The Queen [2022] NSWCA 83

The offender was sentenced following a plea of guilty to 1 count of importing a commercial quantity of a border-controlled drug contrary to s 307.1(1) of the Commonwealth Criminal Code. Original sentence imposed 7 years 6 months imprisonment with a 4-year non-parole period. Offender appealed on the ground that the sentencing judge erred in their application of the test for recklessness when assessing the objective seriousness of the offence.

Nature and Circumstances: When giving evidence in the sentence proceedings, offender explained, on three separate occasions, that they thought at varying times that there ‘could’ be drugs secreted in the suitcase. The sentencing judge concluded, by reference to evidence taken together, including (offender’s) evidence’, that offender had ‘turned [their] mind to that possibility (i.e. the possibility of the presence of drugs in the suitcase). Reasons for sentence must be read as a whole. The sentencing judge was doing no more than paraphrasing, for the purposes of their assessment of offender’s criminality, what offender themself had said about their state of mind at the time of committing the offence. Where recklessness was admitted there was no call for the sentencing judge to determine whether the offender was reckless and the sentencing judge did not do so. The sentencing judge’s task was to determine, for the purposes of an assessment of the objective gravity, the degree of recklessness in the offender’s conduct.

Leave to appeal granted. Appeal dismissed.
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